60-6,197.04. Driving under influence of alcoholic liquor or drugs; preliminary breath test; refusal; penalty.
Any peace officer who has been duly authorized to make arrests for violation of traffic laws of this state or ordinances of any city or village may require any person who operates or has in his or her actual physical control a motor vehicle in this state to submit to a preliminary test of his or her breath for alcohol concentration if the officer has reasonable grounds to believe that such person has alcohol in his or her body, has committed a moving traffic violation, or has been involved in a traffic accident. Any person who refuses to submit to such preliminary breath test or whose preliminary breath test results indicate an alcohol concentration in violation of section 60-6,196 shall be placed under arrest. Any person who refuses to submit to such preliminary breath test shall be guilty of a Class V misdemeanor.
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This section is constitutionally valid, facially and as applied to the defendant, and does not conflict with the 4th, 5th, and 14th Amendments to the U.S. Constitution, and Neb. Const. Art. I, secs. 7 and 12, as this section mandates a preliminary breath test, rather than a search incident to lawful arrest addressed in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct. 2160, 195 L. Ed. 2d 560 (2016), and where the arresting officer cited specific articulable facts to support administering the preliminary breath test. State v. McCumber, 295 Neb. 941, 893 N.W.2d 411 (2017).
The preliminary test referred to in this section (formerly subsection (3) of section 60-6,197) is a different procedure and not a chemical test that will satisfy requirements for a conviction under subsection (3) (formerly subsection (4) of section 60-6,197). State v. Howard, 253 Neb. 523, 571 N.W.2d 308 (1997).
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